2. "By
the enactment of W. Va. Code, 23-2A-1 [1990], which provides that the Commissioner of
Workers' Compensation 'shall be allowed subrogation' when a workers' compensation claimant
collects moneys from a third-party tortfeasor, the legislature expressly modified the
usual, ordinary meaning of subrogation as it is used in that Code section by making the
made-whole rule inapplicable. Therefore, the following provisions set forth by the
legislature in W. Va. Code, 23-2A-1(b) [1990] shall be followed: '[T]he commissioner or a
self-insured employer shall be allowed subrogation with regard to medical benefits paid as
of the date of the recovery: Provided, That under no circumstances shall any moneys
received by the commissioner or self-insured employer as subrogation to medical benefits
expended on behalf of the injured or deceased worker exceed fifty percent of the amount
received from the third party as a result of the claim made by the injured worker, his or
her dependents or personal representative, after payment of attorney's fees and costs, if
such exist.'" Syl. Pt. 4, Bush v. Richardson, 199 W.Va. 374, 484 S.E.2d 490 (1997).

Inco Alloys International (hereinafter
"Appellant" or "Inco") appeals a May 23, 1996, decision of the Circuit
Court of Cabell County denying Inco the right to a subrogation lien upon a settlement
amount received in a civil action filed by Cecil William Cart, II, (hereinafter
"Appellee"). The Appellant contends that the lower court erroneously deprived it
of the right to the subrogation lien. We agree and reverse the decision of the lower court
and remand for reinstatement of the subrogation lien.

I.

On August 12, 1990, the Appellee, an
electrician employed by Inco at Inco's Hot Strip Mill facility in Huntington, West
Virginia, was injured in an electrical fire and explosion while cleaning a silicon control
rectifier (SCR).See footnote 2 2Because
the Appellee's injuries occurred during the course and scope of his employment, his
medical bills of $83,198.02 were paid by Inco, a self-insured employer under West Virginia
Code § 23-2-9 (1994).

On June 17, 1992, the Appellee initiated a
civil action in the Circuit Court of Cabell County against (1) General Electric Company
(hereinafter "GE"), as the manufacturer of the SCR, (2) Wean, Inc., the
contractor responsible for the construction of the portion of the Inco facility in which
the accident occurred, and (3) Inco, as the Appellee's employer. On July 9, 1992, the
Appellee amended the complaint to include United Engineering and Wean United, two
corporations related to Wean, Inc. A second amended complaint, in November 1992, named
Prichard Electric, a contractor involved in the construction of the building, as a
defendant.

After two years of discovery, the
Appellee settled with Prichard Electric. On June 2, 1994, Inco was granted summary
judgment. The lower court found that the Appellee's action against Inco was based upon
West Virginia Code § 23-2-4(c)(2)(i) and (ii) (1994), the deliberate intent statute.See footnote 3 3The lower court had
previously instructed the Appellee to pursue discovery to establish the evidentiary
predicates for this deliberate intent cause of action, and the lower court determined that
the Appellee had been unsuccessful in establishing the statutory requirements to state a
cause of action upon which relief could be granted. The lower court therefore dismissed
Inco with prejudice.
On February 7, 1995, the Appellee filed a
third amended complaint naming S&C Electronics, a fuse manufacturer, as a defendant.
In early 1996, the Appellee settled with all remaining defendants, including GE, Wean, and
S&C, for $62,500.See footnote 4 4The
Appellee subsequently requested the lower court to relieve him of the obligation to pay
Inco monetary reimbursement owed to it as a self-insured employer under West Virginia Code
§ 23-2A-1(c) (1994), providing as follows:
(c) In the event
that an injured worker, his or her dependents or personal representative makes a claim
against a third party, there shall be, and there is hereby created, a statutory
subrogation lien upon such moneys received which shall exist in favor of the commissioner
or self-insured employer . Any injured worker, his or her dependents or personal
representative who receives moneys in settlement in any manner of a claim against a third
party shall remain subject to the subrogation lien until payment in full of the amount
permitted to be subrogated under subsection (b) of this section is paid.

Section (b) of that statute provides:
(b)
Notwithstanding the provisions of subsection (a) of this section, if an injured worker,
his or her dependents or his or her personal representative makes a claim against said
third party and recovers any sum thereby, the commissioner or a self-insured employer
shall be allowed subrogation with regard to medical benefits paid as of the date of the
recovery: Provided, That under no circumstances shall any moneys received by the
commissioner or self-insured employer as subrogation to medical benefits expended on
behalf of the injured or deceased worker exceed fifty percent of the amount received from
the third party as a result of the claim made by the injured worker, his or her dependents
or personal representative, after payment of attorney's fees and costs, if such exist.

During a May 17, 1996, hearing, the
lower court entertained arguments of counsel and thereafter granted the Appellee's
requested relief, setting aside Inco's subrogation lien on the settlement amount obtained
by the Appellee from the other defendants. A May 23, 1996, order memorialized the action
of May 17, 1996, setting aside Inco's subrogation interest. The lower court apparently
treated the Appellee's request for approval of the settlement as a request for summary
judgment on the issue of Inco's subrogation rights, and as such, this Court's review is de
novo. In syllabus point one of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994),
we explained that "[a] circuit court's entry of summary judgment is reviewed de
novo."

II.

Inco contends that the lower court erred
in finding that its subrogation interest was subject to eradication. Inco further contends
that a self-insured employer is entitled to reimbursement of medical expenses paid on
behalf of the employee, pursuant to the explicit language of West Virginia Code
23-2A-1(c), quoted above. The only limitation under the statute is a fifty percent cap on
the net recovery, included in section (b) of the statute. Inco is thus entitled to receive
no more than fifty percent of the net amount of the settlement after the deduction of
attorney fees and costs, according to section (b) of the statute.

The Appellant also maintains that the
lower court erred in predicating its decision upon the reasoning in Kittle v. Icard, 185
W. Va.126, 405 S.E.2d 456 (1991),See footnote 5 5a matter involving subrogation rights of the Department of Health and Human
Resources and outside the realm of workers compensation law. In Bush v. Richardson, 199 W.
Va. 374, 484 S.E.2d 490 (1997),See footnote 6 6this Court addressed the issue of whether the equitable "made-whole rule"
applies in a subrogation claim made pursuant to West Virginia Code § 23-2A-1 and
determined that the right of subrogation to the employer exists even if the
plaintiff/employee has not been made whole by the settlement. In syllabus point four of
Bush, this Court explained:
By the enactment
of W. Va. Code, 23-2A-1 [1990], which provides that the Commissioner of Workers'
Compensation "shall be allowed subrogation" when a workers' compensation
claimant collects moneys from a third-party tortfeasor, the legislature expressly modified
the usual, ordinary meaning of subrogation as it is used in that Code section by making
the made-whole rule inapplicable. Therefore, the following provisions set forth by the
legislature in W. Va. Code, 23-2A-1(b) [1990] shall be followed: "[T]he commissioner
or a self-insured employer shall be allowed subrogation with regard to medical benefits
paid as of the date of the recovery: Provided, That under no circumstances shall any
moneys received by the commissioner or self-insured employer as subrogation to medical
benefits expended on behalf of the injured or deceased worker exceed fifty percent of the
amount received from the third party as a result of the claim made by the injured worker,
his or her dependents or personal representative, after payment of attorney's fees and
costs, if such exist."

The Appellee concedes upon appeal that
the reasoning of the lower court regarding the "made whole" theory of Kittle was
determined to be incorrect in Bush. However, the Appellee forwards two alternate grounds
allegedly justifying the lower court's decision, neither of which was addressed by the
lower court. First, the Appellee alleges that Inco's negligence contributed to his
injuries, basing this claim upon Inco's alleged failure to properly draw the wiring
diagram for the relay signaling a breaker to open. While this may be a compelling
hypothetical argument, we are not faced with facts sufficient to support a finding of
negligence on the part of this employer; nor did the Legislature include any exceptions to
entitlement to subrogation based upon the employer's alleged negligence . The lower court
granted summary judgment to Inco, and that decision was not appealed.See footnote 7 7

Moreover, we have consistently recognized that the workers compensation
scheme and the immunity generated thereby are statutory creations. We have consequently
deferred to the Legislature in the formulation of the intricacies of the workers
compensation system.See footnote 8 8For
instance, prior to the enactment of West Virginia Code § 23-2A-1 in 1990, this Court
explained its refusal to recognize a subrogation claim in the absence of a specific
subrogation statute, as follows: "We have traditionally stated that our workers'
compensation system is entirely a statutory creature and for this reason we feel that
judicial intrusion into the statutory framework, particularly on so complex an issue, is
unwarranted." National Fruit Product Co., Inc. v. Baltimore and Ohio Railroad Co.,
174 W.Va. 759, 765, 329 S.E.2d 125, 132 (1985). See generally 2A Arthur Larson, The
Law of Workmen's Compensation § 74.31(b) (1996) (Analyzes the various state workers'
compensation statutes providing for subrogation and concludes that "[r]eimbursement
of the compensation payor according to the terms of the statute is mandatory, and cannot
be modified by courts.").

The Appellee also contends that Inco
was instrumental in attempting to prevent any recovery by the Appellee and that such
activity should prevent Inco from recovering funds under the subrogation lien.See footnote 9 9Again, the statute
controlling the subrogation issue does not contain equitable principles of unclean hands
or any other mechanism to permit the Appellee to retain funds to which Inco is statutorily
entitled. We therefore are unpersuaded by the Appellee's arguments regarding Inco's
alleged contribution to the Appellee's injuries and Inco's alleged attempt to prevent
recovery by the Appellee.

Pursuant to West Virginia Code §
23-2A-1(c), Inco is entitled to subrogation of fifty percent of the amount received by the
Appellee. We reverse the lower court's decision and remand for reinstatement of the
subrogation lien.

2 An SCR is apparently an
electrical device that converts voltages for operation of the Hot Strip Mill. Evidence
adduced during discovery indicated that Mr. Cart had inserted a paint brush between two
energized 700 volt buss bars of a SCR, causing a short and a subsequent explosion. Mr.
Cart denies that he placed a brush between the bars and maintains that a buildup of dust
may have caused the explosion.

3 The West Virginia Legislature
has specified that the Workers' Compensation Act is designed "to remove from the
common law tort system all disputes between or among employers and employees regarding the
compensation to be received for injury or death to an employee except as herein expressly
provided...." W. Va. Code § 23-4-2(c)(1). West Virginia Code § 23-4-2(c)(2)(i)-(ii)
provides:

(2) The immunity from suit provided
under this section and under section six-a [§ 23-2-6a], article two of this chapter, may
be lost only if the employer or person against whom liability is asserted acted with
"deliberate intention." This requirement may be satisfied only if:

(i) It is proved that such employer or
person against whom liability is

asserted acted with a consciously, subjectively and deliberately formed intention to
produce the specific result of injury or death to an employee. This standard requires a
showing of an actual, specific intent and may not be satisfied by allegation or proof of
(A) conduct which produces a result that was not specifically intended; (B) conduct which
constitutes negligence, no matter how gross or aggravated; or (C) willful, wanton or
reckless misconduct; or

(ii) The trier of fact determines,
either through specific findings of fact made by the court in a trial without a jury, or
through special interrogatories to the jury in a jury trial, that all of the following
facts are proven:

(A) That a specific unsafe working
condition existed in the workplace which presented a high degree of risk and a strong
probability of serious injury or death;

(B) That the employer had a subjective
realization and an appreciation of the existence of such specific unsafe working condition
and of the high degree of risk and the strong probability of serious injury or death
presented by such specific unsafe working condition;

(C) That such specific unsafe working
condition was a violation of a state or federal safety statute, rule or regulation,
whether cited or not, or of a commonly accepted and well-known safety standard within the
industry or business of such employer, which statute, rule, regulation or standard was
specifically applicable to the particular work and working condition involved, as
contrasted with a statute, rule, regulation or standard generally requiring safe
workplaces, equipment or working conditions;

(D) That notwithstanding the existence
of the facts set forth in subparagraphs (A) through (C) hereof, such employer nevertheless
thereafter exposed an employee to such specific unsafe working condition intentionally;
and

(E) That such employee so exposed
suffered serious injury or death as a direct and proximate result of such specific unsafe
working condition.

4 Mr. Cart informs the Court that
he received only $35,452.89 of the $62,5000 settlement due to the payment of costs and
expenses incurred by Mr. Cart in litigation. Therefore, pursuant to statute, the only
recovery to which Inco would arguably be entitled in 50% of the amount actually received
by Mr. Cart, amounting to $17,726.45.

5 In Kittle, guardians of a minor
injured in an automobile accident requested this Court to find that because the minor had
not been made whole by the settlement, the Department of Human Services should not be
entitled to subrogation for medical expenses it had paid on behalf of the minor. We
concluded that the trial court properly applied the "made-whole" rule to deny
the Department full reimbursement for medical assistance payments from proceeds of the
settlement obtained by the minor. 185 W. Va. at 134, 405 S.E.2d at 464. Kittle was
superseded by statute, as explained in syllabus point two of Grayam v. Department of
Health and Human Resources, ___ W. Va. ___, 498 S.E.2d 12 (1997), as
follows:

In both the
1993 and 1995 amendments to West Virginia Code § 9-5-11 (Supp.1993 & Supp.1995), the
legislature rendered the made-whole rule inapplicable by clearly and unambiguously
modifying the usual and ordinary meaning of subrogation as it is used in that statute.
Pursuant to these

amendments, if another person is legally liable to pay for medical assistance provided
by the Department of Health and Human Resources, the Department possesses a priority right
to recover full reimbursement from any settlement, compromise, judgment, or award obtained
from such other person or from the recipient of such assistance if he or she has been
reimbursed by the other person.

7 While we recognize the
distinction between the facts necessary to support a finding of negligence and those
necessary to establish deliberate intent under West Virginia Code § 23-4-2(c), there was
no attempt below to separate the issues of the deliberate intent claim and simple
negligence, and the record is devoid of any establishment of negligence by Inco.

8 The Appellee's brief recognizes
that the "subrogation statute is silent in determining whether the fund or
self-insured employers are prevented from asserting subrogation where the employer caused
or contributed to the employee's injuries" and suggests that we expand upon the
Legislative language and judicially create "standards to address this
situation." We decline to legislate from the bench, and we defer to the scheme
devised by the Legislature. While the concept of judicial empiricism was addressed in 1921
by Dr. Roscoe Pound, Dean of the Harvard Law School in The Spirit of the Common Law,
application of such doctrine empowering courts to create law, is particularly imprudent in
addressing issues to which the Legislature has already spoken. In exercising judicial
restraint, courts have reasoned that it is not the proper function of the judicial branch
to supply legislative omissions from a statute in an attempt to make it conform to some
presumed intention of the Legislature not expressed in the statutory language. Cemetery
Board v. Telophase Society of America, 87 Cal.App.3d 847, 858 (Cal.App.1978).
"[J]udicial process is concerned with the interpretation and application of
legislative intent, not with usurpation of the lawmaking function." Rudley v. Tobias,
84 Cal.App.2d 454, 458 (Cal.App.1948).

9 Inco had also discarded the
fuses which were in issue prior to the initiation of the civil action. Thus, the Appellee
was unable to have those available for testing to determine whether they had been
manufactured improperly.